A wing of the Kerala High Court has not wasted any time in seeking to overturn a judicial block on the release of the controversial Kerala Story 2 movie, providing the film with a lifeline in the form of an interim injunction only hours after it was successfully stayed under a single-judge order. This was the interim order granted by the bench, which comprised Justices Sushrut Arvind Dharmadhikari and P V Balakrishnan, towards the end of the night on Thursday after listening to a petition brought before it by a producer, Vipul Amrutlal Shah. The filing was done in Thiruvananthapuram.
The bench noted that the order made by the individual judge, stating that the Central Board of Film Certification (CBFC) had not put into mind its certification policy in certifying the film, had been made on a mere handful of clippings and without watching the movie, and therefore could not stand. The judges emphasized that the submissions before the court indicated that the producer had acted in accordance with the directions of the CBFC, such as by inserting, excising and altering the film, which demonstrated that the certification procedure involved the application of mind on the part of the board. The bench also decided that an immediate stay was not justifiable without a hearing in detail.
The case unfolded rapidly. The Thursday release had been put on hold earlier following petitions that opposed the certification by the CBFC, and raised doubts on whether the board had duly taken into account the guidelines before certifying the film. To obtain a quick reprieve, the producer attacked the division bench on the ground that the single-judge order had prejudiced the film on snippets instead of watching it in its entirety and that the CBFC had adhered to due process in issuing a certificate. The interim order by the division bench was practically an expedited version that allowed the release of the film as the legal contention was being reviewed.
The Central Board of Film Certification, the statutory body that certifies films to be publicly shown, has been under fire since critics either say that the Board failed to exercise its own standards or that the certification had wider ramifications on the order of the people, communal cohesiveness and the freedom of film-making. The fact that the court has read the case that the producer had acted within the instructions of the board is evidence of the legal notion that the process of certification decisions being made under the board process should not be deferred until demonstrated not to be through the complete factual examination.
According to industry commentators, this was the latest in a long line of high-profile cases where the courts have been requested to strike a balance between artistic expression and the sensitivities of the populace and the regularity of the procedure. Movies that have been in contact with politically or socially provocative issues often attract petitions, mass demonstrations and calls to cut or prohibit them long after they are given a certificate by a censor board. The expeditious pace with which the division bench proceeded – and its insistence on the necessity of watching the entire movie prior to judgment – indicates that courts are conscious of the challenging tradeoff of pre-emptive censoring as contrasted with letting the populace censure itself.
Thursday night’s order is a win of sorts, though not an unconditioned one, for the producer and the makers. The temporary status of the relief will leave the certification and even the legality of the release of the film being litigated; the court will hear full
argument and evidence before coming to a definite conclusion. To distribution companies, exhibitors and streaming services, these interim orders could have turned into a nightmare to their operations: marketing campaigns and screening schedules can be released with the danger of further legal reversal. To the viewers, a reprieve is satisfying, as it offers instant accessibility, but it is also indicative of another type of drama, which is in the courtroom.
In addition to the legal aspect of the issue, the episode also casts doubt on the role and the perception of the CBFC as a whole. The board has a mandate to put statutory guidelines into consideration of the films based on the artistic value and potential public unrest or offense. The opponents of the CBFC frequently put forward arguments about better and more open decision-making in order to allow the courts and society to comprehend better the reasons why the certification decisions are made. Proponents respond that the board has to have the discretion to safeguard social harmony, in which a movie may trigger a combustion. The remarks of the Kerala High Court that the single-judge order had been based on a few clippings are an implicit recommendation to act with more restraint by providing evidence-based interventions where certification is questioned.
The pressure cooker that is at times the field of a modern Indian film is also highlighted by this scene, as the world of creative expression, political chasm, local feeling and national argumentation collide. Courts are becoming the order of things in such conflicts where fair play is the ultimate decree. They do not play the role of moral censor; they guard the proper exercise of the statutory procedure and make sure that the fundamental liberties are not abridged without justifiable cause. The temporary injunction in the case indicates that the judicial restraint of not giving blanket speech-conditioning restrictions unless substantial and meticulous deliberation substantiates them.
What to watch next
Ask petitioners to continue their substantive challenge days ahead. The division bench will then need to take into consideration documentary evidence on the internal work of the CBFC, the type of edits and insertions that the filmmakers have done, and whether any part of the content still therein is a tangible danger to the order of the people or the breaking of certifying norms. Should procedural flaws be determined in the court ultimately at the board, the court may itself order a reconsideration or guide how the CBFC is to interpret its rules in future instances of the same. On the other hand, a court decision in favor of the certification would enhance the legal strength of CBFC decisions when the procedural compliance can be proved.
Editorial comment — some brash words
This episode, as a viewer of Indian cinema, is both familiar and significant as an editor who sees the changes of Indian cinema over the decades in terms of controversy and creativity. On the one hand, the law does not unreasonably defend the right to film expression – the viewer has a right to see the work of art and evaluate it in accordance with the merits. Conversely, there is the existence of certification due to the fact that films have social power: regulators and courts have to make sure that this power is not used in an irresponsible manner. The best course of action is transparency: when the CBFC certifies or requires cuts, the CBFC should issue clear decisions, which are based on a good reason, and when the courts annul or affirm such decisions, a documentary justification has to be provided.
Rapid interim judicial actions such as the one in this case can be utilized when they inhibit knee-jerk bans grounded on snippets. But they are mere short-term palliatives. To escape the courtroom battles of the Indian film industry, lawmakers, the CBFC, filmmakers and the civil society must invest in more transparent standards, expedited review processes and, where possible, consult the masses. It will decrease the necessity of emergency legal solutions and, more to the point, will allow regaining citizens’ confidence in the functioning of the film evaluation, both aesthetical and legal.